A domestic helper told to leave Hong Kong after being convicted of buying illegal cigarettes for her employer is challenging the Immigration Department in court.

Joenalyn Elmedorial Aguilar, who has been in Hong Kong for more than 10 years, is seeking leave to apply for a judicial review against the Director of Immigration, claiming the case officer was prejudiced when denying her a visa extension and did not consider that her employer tricked her into committing the criminal offence.

Lawyer Michael Vidler said he would also challenge the department on the ground that it was not the type of offence that usually led to helpers being sent home. The notice of application for the review says Aguilar was asked by employer Phillipus Meyer to buy 600 cigarettes from a Wan Chai vegetable store, where she was arrested by plain-clothes customs officers earlier this year.

Aguilar, from the Philippines, paid her fine and after her contract with Meyer ended, found a new job with another family. But an immigration official told her she had to leave Hong Kong immediately.

'You have a criminal document; I am not going to process your documents,' the officer said, according to the court document. When Aguilar told him she did not know she had made a mistake, the officer replied: 'You are only a domestic worker - you cannot make mistakes.'

The officer then told Aguilar to voluntarily cancel her application, and personally telephoned her twice in the following weeks to tell her that she was in 'big trouble' if she did not leave and 'lawyers cannot do anything' to help her, the paper says.

The Guidebook for the Employment of Domestic Helpers from Abroad, which specifies immigration department policy, states that 'offences under immigration laws' can be considered when deciding on extensions of stay. Vidler said Aguilar's conviction did not fall into this category and immigration officials might not be aware of that.